Hong Kong Human Rights Monitor

Refugees Instruments & Immigration Law --- Our Positions

The United Kingdom is a state party to the UN Convention relating to the Status of Refugees and the 1967 Protocol. The UK Asylum and Immigration Appeals Act 1993 in effect incorporates the Convention and Protocol in domestic law by requiring special adjudicators to review on appeal, immigration decisions made by the Home Office by applying these treaties in such a way as not to be contrary to the UK's obligations under them. However, these agreements have not been extended to Hong Kong.

The international agreements oblige signatories to provide protection to a refugee by guaranteeing that he will not be expelled to the frontiers of a territory where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The Convention and Protocol apply in Hong Kong to Vietnamese asylum seekers under the Comprehensive Plan of Action. This class of persons is also recognised in the Immigration Ordinance which empowers the Director of Immigration to determine that a resident or former resident of Vietnam is a refugee and grant him permission to remain in Hong Kong pending resettlement elsewhere. They were introduced in 1979 in order to deal with the influx of asylum seekers from Vietnam.

Apart from residents and former residents of Vietnam a person claiming that he is a refugee has no right to have such claim recognised under the Immigration Ordinance. In the case of Madam Lee Bun V Director of Immigration, the Court of Appeal rejected a claim by two applicants who had come to Hong Kong from China that they were entitled to make any special claim to be treated as refugees by the Director of Immigration. Sir Derek Cons, Vice-President said on behalf of the court that we can only conclude that the legislative authority in Hong Kong intends that, apart from Vietnamese refugees, those claiming political persecution shall not be accorded any special rights and that the general discretion [to permit someone to remain in Hong Kong] given to the Director shall remain unfettered by rules.

It is common knowledge, that the Director of Immigration has entertained claims from individuals claiming refugee status on account of a fear of persecution in China. The Director has told the Monitor that he has dealt with asylum claims outside the Convention and Protocol. The Monitor asked whether he entertained claims for asylum from persons who were not former residents of Vietnam and, if he did, what criteria applied. His answer in a letter dated 18.6. 1996 was The 1951 UN Convention/1967 Protocol do not apply in Hong Kong. There is no legal framework and existing powers are used on a case by case basis where it is appropriate to consider such cases. (As regards questions put by the Monitor about how this class of asylum seekers were treated and how many of them were they the Director replied to each question with the response Not applicable.)

It seems undesirable to the Monitor that if an asylum seeker comes to Hong Kong from whatever country and asks to be recognised as a refugee, the decision whether to entertain the claim should be treated as a matter of pure administrative discretion on the assumption that the Legislative Council has no interest in the matter. The Monitor invites the Government to publish details of its policy towards people (other than former residents of Vietnam) coming to Hong Kong who make claims for asylum. If the Government has a policy on this class of asylum seekers then the Monitor recommends that it be embodied in legislation so that it is publicly known and is plainly justiciable so that an asylum seeker can go to court in respect of such a claim. Given the fact that the PRC has acceded to the Convention and the Protocol there would appear to be no legal policy objections to legislation which incorporates these international instruments unless the PRC does not wish to incur international obligations in Hong Kong in this respect.

Emily Lau

1996/1997 (c) Hong Kong Human Rights Monitor